Posted
by
CowboyNealon Saturday September 25, 2004 @12:55PM
from the soundboards-and-dats dept.

lee writes "BBC News reports briefly on a federal judge declaring a 10-year-old anti-bootlegging law unconstitutional, because it sets no limits on the length of copyright of live performances, and grants "seemingly perpetual protection" to copyright holders."

HMmm. Too bad the $$$-based lobby is listed to too much, in the USA.
Can anybody tell me what the years _before_ my puberty were like w.r.t. legislation in global context? What about (c), trade, patents, money(laundring), privacy, etc? The past few years look SO bad so I want to check if this is a trend or a change

They were largely the same except the Internet wasn't around to keep everyone apprised of all the corporations' shady dealings, so it was easier for crap like this to get perpetrated.

Well, if anything, the past was actually worse. The internet has not only allowed us to keep more apprised of what's going on, but it's also led to increased availability of bootlegs and other illicit material. It used to be that if you wanted a live recording of a show, and you didn't have the ability to go to the show yourself, you basically had to go to one of these little record stores in New York or some other big city and buy one. And of course, it was very easy for the feds to figure out where these dealers were and shut them down. (More would pop up later, but it wasn't this rising tide that the internet has now wrought.)

I used to work at one of these record stores - Zapp Records in New York. One day in the mid 90's I came in to work only to see a whole mess of US Customs agents rifling through our shelves. They ended up confiscating half of our inventory and the store shut down a month or two later after the owner fled to Germany to escape federal prosecution.

This is the way it used to be. What goes on now is no different, but because supply is now outstripping law enforcement's ability to deal with it, it's probably actually easier to get away with breaking bootlegging laws at this point.

My point being, there were no "good old days", as the original question seemed to be implying. These laws have always been enforced and in fact were probably easier to enforce before the internet became mainstream.

Just because the law is wrong doesn't mean the court endorses the crime. Take Miranda vs. Arizona [findlaw.com] . Even though the rapist is freed, and precedent is set, the court isn't saying it's okay to rape someone.

which america do you live in? The police here see the desire not to be searched as equal to guilt. I know from personal experience. Police are not law enforcement here, they are life collectors that recycle people for money like the homeless they arrest do with cans.

An analogy exists to illustrate a point! You can't prove something by analogy. It's not the same situation. Since it's a different situation, the conclusions from one do not automatically apply to the other.

And while we're at it, nobody was equating theft of a recording with rape. He was using one specific case as an analogy to another to illlustrate the point.

The Constitution mandates that specific time frames for copyrights be established, and the judge has said that this is ambiguous about how long the copyright for this particular type of recording lasts. Unless the appelate court clarifies it by issuing a ruling saying that its length is already covered under copyright law, it will most likely stand. The courts don't like ambiguous laws, especially laws that are ambiguous where the U.S. Constitution is quite clear.

I've noticed that the BBC does a much better job on this type of thing than the American media. American news sources generally devote page 1 space to death and scandal, while the Beeb gets into the American court rulings related to personal liberty and freedoms, etc. I live in the 'States, but get more news from the BBC than anywhere else. If you care more about court rulings than manufactured "scandals" or political doublespeak, you don't have much choice. It's not necessarily the media's fault, rather it just reflects the local readership/viewership interests.

not wanting to come across as troll, but as a UK citizen the BBC is one of the things that makes me proud and optimistic. the idea of mixing facts and profits just seems like a really Bad Idea(tm) to be avoided as much as possible.

It's not like the Beeb doesn't have a bias, it most certainly does. It's just that it's bias doesn't happen to include cowtowing to the political interests in the US, just some of them in the UK. One of the most enlightening classes I ever took was an Advanced Placement (honors) US History class in high school. We used three different college textbooks as the reading material for the year, on our final a major portion of it was an essay comparing and contrasting the biases of the different authors and how t

Since I haven't gotten past these problems, it's hard to take a position on this "death & scandal" subject matter that you speak of.

If you're going to get your panties in a wad over grammar and spelling, perhaps its worth pointing out that you should have said "...subject matter of which you speak." Not that I disagree with you, but really...

That's not just a commentary on the whorishness of American media (which is widely regarded by execs in the biz as infotainment rather than journalism). It's also a commentary on the sad state of public interest in copyright and fair use issues. It's going to take legislation that overturns Betamax and outlaws VCRs and PVRs to finally get the general public's attention on this issue, and by then it could be too late to turn things around.

Amen to that. And we have good old deregulation to thank for it. The media would never have rolled over to the extent that they have for Bush even as recently as 15-20 years ago. The fewer players there have become, the worse the content has gotten. This is a clearly observable trend across many media, in many disparate cases. From ClearChannel radio stations that are a uniform shade of puke to the cable giant Viacom, which owns so many things on cable that if they don't want a story run, it won't be run... IE the Reagan thing on CBS, which Viacom owns...

The bottom line is, in a democracy there's no good reason for a very few major media players to own the game. A free and *responsible* press, along with good education, is something without which a democracy cannot function. Media consolidation, and the rampant homogeniety and misinformation it engenders time and time again, are probably the biggest internal threat to American democracy today.

Then start your own news organization. Media consolidation is a function of economics, not politics. Alot of small news organizations each with there own political agenda isn't much better than a few large news organizations with their own agenda.The public is dumb, they don't care where they get their news from, whether its "Bush is King" Fox news, or "Save the planet and think of the children" CNN, or the entirely fabricated tablioid "news". Public apathy and poor education are a far bigger threat to d

> Only if people are educated enough to understand what they are seeing. It's hard enough for people to understand the slant in "mainstream" media, let alone deciphering the agendas of dozens of news agencys.

People may not find it easy to understand the bias of what they see, but it wont be difficult at all for them to see that bias exists especially when different programs on the same station have a very different bias. It is quite likely to help them also in makigng a start to actually realize there i

Maybe you'd like to be the one to try to find the American news source indicating significant change in America. Whoops my bad, when it comes to American news everyone is too concerned over the weather in Florida, what was happening with Kobe, whether Michael was touching some kid at his ranch, or some other crap to actually pay attention to anything of importance like that. The BBC was offering some of the best news coverage of shit going down in Iraq. Quality journalism doesn't change just cause the news

It would be in the U.S. news but the findings were immediatly copyrighted and any posting of the results are illegal and any news agencies reporting on this story will be fined $500,000.

No news on whether BBC executives will be extradited due to their crimes against humanity or not. The RIAA has already donated lawyers to the judge involved saying that his rights to hold intellectual property are being violated. WIPO [wipo.int] is also on the case.

Copy of an expanded version of the story with informative links (at bottom) from .
[newsday.com]

By ERIN McCLAM

Associated Press Writer

September 24, 2004, 8:27 PM EDT

NEW YORK -- A federal judge Friday struck down a 1994 law banning the sale of bootleg recordings of live music, ruling the law unfairly grants "seemingly perpetual protection" to the original performances.

U.S. District Judge Harold Baer Jr. dismissed a federal indictment of Jean Martignon, who runs a Manhattan mail-order and Internet business that sells bootleg recordings.

Baer found the bootleg law was written by Congress in the spirit of federal copyright law, which protects writing for a fixed period of time _ typically for the life of the author and 70 years after the author's death.

But the judge said the bootleg law, which was passed "primarily to cloak artists with copyright protection," could not stand because it places no time limit on the ban.

Baer also noted that copyright law protects "fixed" works _ such as books or recorded music releases _ while bootlegs, by definition, are of live performances.

A federal grand jury indicted Martignon in October 2003 for selling "unauthorized recordings of live performances by certain musical artists through his business."

The business, Midnight Records, once had a store in Manhattan but now operates solely by mail and Internet. It sells hundreds of recordings, specializing in rock artists, from the Beatles to Led Zeppelin.

An e-mail message to Martignon from The Associated Press was not immediately returned Friday, and a phone number could not immediately be located.

Megan Gaffney, a spokeswoman for the Manhattan U.S. attorney, said federal prosecutors were "reviewing the decision and will evaluate what steps ought to be taken going forward."

The Recording Industry Association of America, a trade group that fights piracy and bootlegging, also disagreed with the ruling.

The decision "stands in marked contrast to existing law and prior decisions that have determined that Congress was well within its constitutional authority to adopt legislation that prevented trafficking in copies of unauthorized recordings of live performances," said Jonathan Lamy, a spokesman for the RIAA.

The bootleg law calls for prison terms of up to five years for first offenders and 10 years for second offenders, plus fines. It requires courts to order the destruction of any bootlegs created in violation of the law.

The law did not apply to piracy, which is the unauthorized copying or sale of recorded music, such as albums.

Just out of curiousity, what is the Grateful Dead's enlightened position and attitude to the recording and distribution of their live performances?

Taping was allowed, and even encouraged, but they prefered that you do so in the "Taper's Section" right near the sound board. The most experienced tapers would have thousands of dollars tied up in their rigs, using Neumann microphones, custom microphone pre-amps, etc. The last I read about them, they were using DAT machines, but I have no doubt they are now

I apologize for the unpleasant news you are probably reading this morning. We thought we had this one in the bag, but the opposing side actually made better use of solid facts and accurate analysis than we anticipated. I estimate more obfuscation will be needed to win on appeal. We will do our best though.

Hello again sir, just a quick follow up. It seems our options may be more limited than I originally thought. Some guy on Slashdot just gave me a better grounding in law. I thought I was supposed to know everything already?

The point of copyright is to let the creator profit off of his/her work for a time, but not to keep the work out of the public domain perpetually.

A point of clarification.

The original intent of copyright law was to let the public enjoy the benefits of the work perpetually in exchange for a temporary monopoly. The temporary monopoly was only granted as a side-effect of the original intent, it was not even the original intent.

So if you had been an artist who refused to share your work with the public, y

Perpetual protection is unconstitutional. Article 1, Clause 8, provides Congress with the power to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

I find it ironic that everyone uses Disney as the whipping boy of all that's wrong with copyright when in fact they exemplify how the system does, and should work. Many arguing for shorter copyright terms are only doing so because they simply want shit for free. Disney, on the other hand, uses what's in the public domain already and creates wonderful works of art and culture. There's nothing stopping you from doing your own animateds versions of Alice in Wonderland or the Sword in the Stone if you want e

Disney, on the other hand, uses what's in the public domain already and creates wonderful works of art and culture... you argue that copyrights are stifling creativity

You know, Disney using stuff from the public domain and copyrights stifling innovation are not mutually exclusive. In fact, if Alice in Wonderland, Peter Pan, etc were still under copyright, Disney may well not have been able to make their versions, would they?

Disney, on the other hand, uses what's in the public domain already and creates wonderful works of art and culture.
But what do you do when Disney allows nobody else to use these public domain works because they have copyrights and trademarks on them due to their remake?

No, that's not the point of copyright law. Protecting artists is a means, not an end, much as the RIAA might wish otherwise. The point of American copyright laws -- as stated quite unambiguously in the US Constitution -- is to encourage the creation of new work. To achieve that goal, the framers of the Constitution envisioned a bargain between creators and everyone else: creators get the exclusive right to make copies of their work for a limited time, after which the work becomes the property of society as a whole (public domain) and thus available as a starting point for the next generation of artists and authors.

There is no law of nature that stops an idea from spreading from one person to another, even if the idea is in the form of a catchy tune or a long set of words that make up a novel. Copyright law is therefore a restriction of the people's freedom, and it's not in the spirit of the Constitution to restrict the people's freedom without giving them some benefit in return. The "limited time" concept is that benefit: by giving creators extra incentive to create, it says to the people, "Hold off spreading new ideas around for a little while, and there will be more of them for you to play with later." Without the second part of that sentence, the law is simply a restriction of freedom with very little public benefit to make up for it.

That's the theory, anyway. In my opinion current copyright law is already excessive in that a work created the day you're born will not be available to you to build upon until you're on your deathbed.

It is worth observing that the people who argue most strenuously for infinite copyright terms are very rarely the creators of copyrighted works -- they're the publishers of those works. Listen to what the actual artists say and you'll hear a different tune: artists realize that they stand on the shoulders of giants, and that everything they create is based on what's come before. Without that cultural heritage to freely draw upon, creators suffer just as much as everyone else.

In the movie Toy Story, as with many animated movies, there are many people involved with animating each character. The stories themselves may be the collaberation of multiple writers. Who then is the CREATOR of the work? Beyond the death of which artist should this work be protected? Do we have to wait 70 years past the death of the last Beatle, or 70 years past when they broke up? Or do we have to wait 70 years after Michael Jackson dies before Yellow Submarine becomes public domain?

"It stands in marked contrast to existing law and prior decisions that have determined that Congress was well within its constitutional authority to adopt legislation that prevented trafficking in copies of unauthorised performances of live music," spokesman Jonathan Lamy said.

Long before there was Napster, there were concert tapes, live recordings made and swapped by fans of groups like the Grateful Dead and Country Joe and the Fish. Those recordings have narrow constitutional protection from copyright, a judge in Manhattan ruled Friday, handing the Recording Industry Association of America's anti-piracy crusade another defeat.

The ruling came in the criminal case against a longtime fixture in the New York music scen

I'm all for restrictions on copyright terms to reasonable limits...But when you consider that it's illegal to record live performances ANYWAY there's no copyright on those recordings to begin with (because their illegit recordings the very nature of those recordings are outlawed) If the band makes a recording of that performance then normal copyright (and the usual limitations) apply.

So if it's illegal to make those recordings, then it's illegal to sale those recordings and it doesn't make sense for the j

The reason it is (or at least was) illegal to record live performances, is because of copyright. I think you are getting too caught up in the "copy" part of copyright. A copy does not need to be of another recording - a recording of a live performance constitutes a copy, because you are copying the broadcast.

Recording live performances is allowed in some cases. Not only with jam bands that have followed the Dead and Phish in their stance on live recording. Other bands and artists are cool with it too. They realize that, by allowing shows to be recorded, they are potentially increasing their fanbase, as well as increasing the number of people at a show. I've been to shows to tape, based solely on a recommendation to go see and tape their show.

I also used "their" instead of "they're" and bad sentence structure, (because they're illegit recordings, the very nature of these recordings is outlawed) but that's what you get when you post after just waking up with a hangover...

You missed one in the original article (which you did read? "It stands in marked contrast to existing law and prior decisions that have determined that Congress was well within its constitutional authority to adopt legislation that prevented trafficking in copies of unauthorised performances of live music," spokesman Jonathan Lamy said.

Um - come again: "trafficking in copies of unauthorised performances of live music"

In the true rock & roll tradition, Midnight Records [midnightrecords.com], the NYC bootleg store that was exonerated by this ruling, has an invalid certificate installed in their webserver. Apparently their server host [psoft.net] self-certifies, without membership in a trust network including popular web browsers. It's these borderline operators [imdb.com], who take the risks at the edges of the protection of our liberty, who wind up protecting us all.

The judge is probably referring to Article I, Section 8 of the US Constitution which grants Congress the power to grant exclusive rights for a
limited time, i.e. there has to be some limit, even if it's a thousand years.

Here's the text:

Congress shall have the power...[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

It seems to me that one could argue that the Constitution prohibits copyright terms that are generally expected to be longer than the author's lifetime. That is, if you grant someone rights for a "limited time," that the person in question should expect those rights to expire at some point.

Note that the Constitution is also clear that the rights are being granted to "authors and inventors," *not* their heirs, designees, estates, etc. If copyright were intended to be perpetual and handed down among generations and corporations, wouldn't the Constitution say that?

You cannot have "rights" end with the death of an author, since the "author" might be killed in a plane crash next week - well before the people he licensed those rights to have the opportunity to recoup. I know that's a dirty word, but the fact is rights that cannot be traded have no value, and some rights are what gives artists value.

Monetary value is what I think you mean. Obviously, even things that cost nothing have value (as in; linux? love?).

Usually, if you slip the guy at the mix board a $20 or so, he'll let you hook up a minidisc recorder. Go home, convert the tracks to MP3, and boom - a decent live recording for about the price of a CD.

I agree with you in general, the quality of live recordings leaves a lot to be desired. However, I hold on to some live recordings because bands sometimes play unreleased songs, do covers, and add quirks into existing songs. Also, some up and coming bands only have live recordings of their songs, having not been able to afford studio time yet. Of course, the up and coming bands usually encourage free distribution of their music.

Not all artists are prefab performers. Some are musicians, actually. There are plenty of artists I like that regularly completely overhaul the arrangements of songs, or play songs they haven't released yet, or play covers that you simply cannot hear studio versions of.

Besides, it also happens that the studio mix simply isn't very good but that live recordings sound astounding.

It all comes down to preference, live recordings can add excitement, overview of an artists growth and they can show you songs in a different light, as live artists are prone to let a song breath some more, giving it the room to blossom that simply isn't always possible in studio recordings!

Yeah I agree with you on this one. The bootlegs of course suck and aren't worth listening, but normal live recordings kick ass. Generally, I'd say that live albums have more energy, are heavier and faster than studio recordings. A few examples.

Deep Purple. I dunno, but Made In Japan is simply much better than any studio album. A song that is about 8 minutes on a studio album is almost 20 minutes live!

AC/DC, any live album. You can hear the crowd screaming "Angus! Angus!" and the solos are extra long, this

Many people want recordings of live performances they've been to, just as a souvenir, kinda like you might buy a T-shirt there, too, or any other article of merchandise. Other people will just buy bootlegs of live performances of certain bands because that makes them more 'hardcore' than fans who just buy the albums in the shops. Thirdly, some bands perform songs live that will never see the light of day on an official album, and so bootlegs are the only way to hear them.

Secondly, I find most bootlegs are recorded off the soundboard and not some guy with a casette player in the crowd - maybe I just like lenient bands or perhaps I've just been lucky - Bootlegs recorded from the crowd are notoriously awful.

I think bootlegs are really only for the hardcore fans - regular people won't want them or wont have the will to seek them out. But if you're a dedicated fan, and owning everything there is to possibly own to do with your favourite band is important to you, then a good bootleg of a great performance is more than worth the money.

Depends on the band. I went to a Primus concert where people in the crowd had some pretty amazing equipment. One guy had an ~8' high boom with dual condenser mic's at the top. He was recording a true stereo mix to both a laptop and DAT desk (so that he could be sure one device going down didn't leave him without a recording). He emailed me a link to the files a couple days later and they sounding freaking incredible. I know most bands wouldn't let you take that kind of stuff into the concert but it's possib

I love live music - IMHO, it's what music is supposed to be. It's organic, spontaneous and human. I really enjoy hearing my favourite bands as they translate their material to a live setting, where they have to deal with the fact that whereas their album was recorded to 64 tracks, they are now just 3 or 4 guys with their instruments, trying to recreate the complexity and richness of a modern studio production.

If you ever saw Stevie Ray Vaugn live in concert, you would understand why. He was significantly better live than on tape. Some music has a more raw, edge to it live, with more energy. This is very common for Blues, but lots of music sounds better live, mistakes and all. Gives you a more real sound that many people, especially musicians like myself, like.

Then again, some musicians suck live. I try to avoid them on CD as well.

ClearChannel has a program called Burn Live (the name was changed to
"Instant Live"® after an unfortuante incident [newcenturyfriends.net]) that
records most of the entire concert direct from the soundboards. Their
deal with Worst^H^H^H^H^HBestBuy also has the CDs in those stores after
the show.

Some people don't think Burn Live
is all that [pitchforkmedia.com], either. Note that ClearChannel is trying to lock out
competition [weblogsinc.com] of their live CD burninating model by using the patent system.

After I've heard a song about 100 times on the radio, I get to know it well enough to perceive other interpretations of the song as somehow 'wrong.' Listening to live music, which is always different from performance to performance, helps stave off this effect.

I will concede, though, that the live music often has missed notes and other errors. It reminds me that professional musicians aren't perfect, they just spend enough time in the studio to perfect the product before release. (Using varying definitio

Why should a recording of a live performance have any greater copyright protection than a pressed music CD? Under the current law, 1000 years from now, that recording of the live performance would still fall under protection, which is probably unconstitutional.

Because the recording shouldn't exist. If the artist wants to have a cd burner farm behind the stage that tosses mixboard recordings into the crowd, then that's fine and great.

You aren't understanding the situation. It isn't the recording of the live performance that has protection. Eric Clapton's live recordings that you can buy off Amazon have the same protection as his studio work. The problem is that with bootlegs, the artists aren't getting a say in whether a recording is made of their concert.